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The rise in gang violence since the 1980s caused lawmakers to seek a variety of methods to curb the formation and activities of these gangs. According to statistics from the National Youth Gang Center, more than 24,500 gangs, consisting of more than 770,000 members, exist in about 3,330 cities in the United States. Congress spends as much as $20 billion per year in health care costs treating victims of gunshot wounds, and many of the incidents involving guns also involve street and other types of gangs.
A gang is sometimes difficult to define, especially in legal terms. Although gangs typically involve a congregation of individuals, primarily young males, certainly not all congregations or informal gatherings of young individuals constitute gangs. Definitions of gangs or street gangs vary among the laws governing them. Alabama law, for example, defines a "streetgang" as, "[A]ny combination, confederation, alliance, network, conspiracy, understanding, or similar arrangement in law or in fact, of three or more persons that, through its membership or through the agency of any member, engages in a course or pattern of criminal activity." Ala. Code § 13A-6-26 (2002).
Congress, state legislatures, and municipal governments have responded to the growing tide of gangs by considering a variety of bills addressing gang violence. Although efforts at the federal level have largely been unsuccessful, many states and municipalities have enacted laws designed to deter gang-related violence. Several of these statutes and ordinances have been fashioned as anti-loitering statutes, which often raise First Amendment concerns. The U.S. Supreme Court in 1999 made it more difficult for municipalities to draft gang loitering ordinances when it found that an ordinance such as this in the city of Chicago was unconstitutional. City of Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999).
Activities of gangs predate the formation of the United States, though the common perception of these gangs has changed over time. The level of violence among street gangs is a relatively new phenomenon. Because different organizations and individuals define the term gang differently, accurate statistics are often difficult to compile. Many of the crimes committed by gangs are violent crimes, including Homicide. Moreover, many of the gang members are juveniles or young adults.
According to the 1999 National Youth Gang Survey, 90 percent of gang members are male. Seventy-one percent of these members are between the ages of 15 and 24, and 16 percent are age 14 or under. About 79 percent of the gang members, according to this survey, are Hispanic or black, while only 14 percent are white. Because of the large discrepancy in the number of minorities, some commentators have suggested that young minority males are unfairly stereo-typed, leading to Racial Profiling of groups consisting of these young minority males.
Until the late 1980s, public and law enforcement agencies perceived gangs as racially and ethnically segregated, loosely organized fighting groups. However, a 1988 study of two major Los Angeles gangs, the Crips and the Bloods, showed that these gangs had become highly organized and entrepreneurial. These gangs had begun to engage in drug trafficking and had expanded their operations to multiple cities and states. As the gangs' interest in drug trade increased, so too did the level of violence perpetrated by their members. Between 1984 and 1993, the number of homicides committed by juveniles increased by 169 percent, representing a sharp increase in the number of gang-related crimes. Gang membership also increased markedly during this time. Between 1989 and 1995, the number of students reporting a gang presence at their school increased from 15 to 28 percent.
In response to the concerns caused by gang violence, several states and cities enacted statutes and ordinances designed to address street crime. In 1988, California enacted the Street Terrorism Enforcement and Prevention Act (STEP Act), Cal. Pen. Code §§ 186.20–.33 (2001). Since that time, at least 28 other states have enacted similar legislation. Cities with traditional gang strongholds, such as Chicago and Los Angeles, enacted a series of ordinances that enabled law enforcement to take a more proactive approach in fighting street gangs in those cities.
Boston, which experienced the most number of homicides in its history in 1990 due in large part to gang violence, initiated a community-based strategy designed to target at-risk youth before they considered joining a gang. It also developed strategies for youth intervention and enforcement of Gun Control laws. Due to this initiative, youth homicides dropped 80 percent from 1990 to 1995. Similarly, Salinas, California, experienced a 200 percent increase in the total number of homicides from 1984 to 1994. After receiving federal funding, the city improved it anti-gang task force and developed a series of additional programs. As a result of these programs, gang related assaults decreased by 23 percent, and the homicide rate fell by 62 percent.
In his 1997 state of the union address, President bill clinton requested that Congress "mount a full-scale assault on juvenile crime, with legislation that declares war on gangs," including more prosecutions and tougher penalties. The same year, Congress considered two bills under the title Anti-Gang Youth Violence Act of 1997 (S. 362, H.R. 810, 105th Cong.). Despite initial support for this legislation, which would have provided $200 million in funding for local programs, neither bill passed through its respective committee.
Although Congress has been unable to enact comprehensive anti-gang legislation, other federal law and actions of federal authorities have been used in the effort to curb gang violence. Federal prosecutors have relied upon the racketeer influenced and corrupt organizations (RICO) statute to prosecute gang members. In the 1990s, the number of RICO prosecutions against gang members more than doubled. Federal authorities have also assisted local law enforcement through a variety of funding programs. For example, in February 2003, the Los Angeles City/County Community Law Enforcement and Recovery (CLEAR) anti-gang program received $2.5 million in federal funding for its efforts in reducing gang-related violence.
State legislatures have approached the problems related to gang violence through the enactment of a number of different statutes. Due to rulings by the courts within the various states, some legislatures are more restricted than others in enacting these types of legislation because of potential violations of state constitutional provisions.
Gang Participation A number of states proscribe participation in criminal street gangs, though these statutes vary from state to state. In Georgia, for instance, it is unlawful "for any person employed by or associated with a criminal street gang to conduct or participate [in such a gang] through a pattern of criminal gang activity." Ga. Code Ann. § 16-15-4 (1998). Likewise, in Texas, a person commits an offense "if, with an intent to establish, maintain, or participate in a combination of or in the profits of a combination of or as a member of a street gang, he commits or conspires to commit" one of several crimes, including violent crimes or distribution of controlled substances. Tex. Pen. Code Ann. § 71.02 (Vernon 1997).
Gang Recruitment Several states make it a crime for a person to recruit another to join a criminal gang. In Florida, an individual "who intentionally causes, encourages, solicits, or recruits another person to join a criminal street gang that requires as a condition of membership or continued membership the commission of any crime" commits a third degree felony. Fla. Stat. Ann. § 874.05 (1999). In Kentucky, an individual who solicits or entices another person to join a criminal gang is guilty of the crime of criminal gang recruitment. Ky. Rev. Stat. Ann. § 506.140 (2000).
Gang-Related Apparel A number of states permit schools to prescribe a dress code, and several of these states specifically allow the schools to prevent gang members from wearing their gang apparel at the schools. For example, under New Jersey law, "a board of education may adopt a dress code policy to prohibit students from wearing, while on school property, any type of clothing, apparel, or Accessory which indicates that the student has membership in, or affiliation with, any gang associated with criminal activities." N.J. Rev. Stat. § 18A:11-9 (1999). Tennessee law allows similar restrictions for students in grades six through twelve. Tenn. Code Ann. § 49-6-4215 (1998).
Do Anti-gang Laws Violate the Constitution?
The national aversion to gangs has sparked debate over First Amendment rights of gang members versus citizens' safety at home and on the streets. Anti-gang injunctions and the enactment of anti-gang loitering ordinances are the two most prominent legal weapons currently employed against gangs. Critics of these efforts, most notably the American Civil Liberties Union (ACLU), contend that these initiatives violate the First Amendment's right of free association. Defenders of anti-gang initiatives reply that society's rights to peace and quiet and to be free from harm outweigh the gang members' First Amendment associational rights.
Critics reject the idea that public safety allows the government to tell citizens they may not associate with each other. As long as citizens are not committing a crime, the state cannot tell them not to stand on a street corner together or walk down the street. The Supreme Court has recognized that freedom of association is on par with Freedom of Speech and Freedom of the Press.
The Court has allowed municipalities to require permits for parades, sound trucks, and demonstrations, in the interest of public order. However, the courts have been careful not to abridge the right of unpopular assemblies or protests. In 1977, the largely Jewish suburb of Skokie, Illinois, enacted three ordinances designed to prevent a march through the city by the American Nazi Party. The ACLU sued the city, and a federal court ruled that Skokie had violated the First Amendment by denying the Nazis a permit to march (Collin v. Smith, 578 F.2d 1197 [7th Cir. 1978]).
Critics of anti-gang laws also argue that just because gang members are unpopular to a large segment of society does not give society the right to restrict their right to association. Why, for example, should the Ku Klux Klan be allowed to march through an African-American neighborhood while persons in that neighborhood cannot congregate on a playground to talk or play sports?
Critics believe there are better alternatives to controlling illegal gang activity than loitering laws and community injunctions. The ACLU contends that anti-gang injunctions do not work and may even make things worse. The resources of law enforcement are concentrated in one area, causing the shift of criminal activity into other neighborhoods. In addition, arresting a gang member for violating a loitering ordinance will not change the underlying dynamic of gang activity in urban areas. Critics argue that these anti-gang efforts are a cynical, political ploy that has more to do with creating a tough-on-crime appearance than with effective law enforcement.
As an alternative, critics would emphasize community policing, increased resources for law enforcement, and efforts to improve the economic status of urban areas. They note that crime prevention and effective enforcement of criminal laws will do more to make a community safe than telling a suspected gang member to leave a street corner. In time, they believe, both the public and law enforcement will realize that solid, everyday police work produces better results.
Defenders of anti-gang initiatives contend that although First Amendment rights should be protected as much as possible, no constitutional right is absolute. In the case of gangs, the violence and criminal activity in certain parts of urban areas have reached a stage where normal law enforcement techniques do not work. Although the ACLU may say that individual rights must be protected, such a claim rings hollow when a gang can take over a neighborhood through violence and intimidation and yet evade law enforcement. In a crisis situation, additional steps must be taken to restore public confidence in the police and local government.
Restricting gang activity is not unconstitutional, argue defenders of the laws, because the Supreme Court has made it clear that no group of persons has the right to associate for wholly illegal aims. Moreover, associations engaging in both legal and illegal activities may still be regulated to the extent they engage in illegal activities. Defenders emphasize that the mere existence of an association is not sufficient to bring all that association's activities within scope of the First Amendment. Therefore, nonexpressive gang activities can be regulated.
Defenders also emphasize that injunctions and loitering ordinances are constitutional because they serve significant, and often compelling, government interests by reducing the threat to public health and safety caused by gang activities. They note that in the case of an Injunction, gang members are free to conduct their expressive activities outside of the geographic area defined in the injunction. Thus, the injunction is likely to be upheld because it is narrowly tailored.
Though defenders believe these anti-gang initiatives will become important weapons for law enforcement, they acknowledge the danger of guilt by association. They believe, however, that this problem can be avoided if law enforcement officials adhere to constitutional standards in determining who should be subjected to anti-gang provisions. Judges must also carefully review evidence for each defendant to make sure the person has not been unfairly prosecuted.
Despite criticisms leveled by the ACLU and others, proponents of anti-gang laws adamantly support their use. While some of these initiatives may prove ineffective, law enforcement should be given the chance to test new ways of addressing destructive elements within their communities. Modifications can be made, and new initiatives plotted, but proponents insist that the law is necessary to protect the health and safety of citizens.
Perez, Silvia. 2001. "Alternatives in Fighting Street Gangs: Criminal Anti-Gang Ordinances v. Public Nuisance Laws." St. Thomas Law Review 13 (winter): 619–40.
Smith, Stephanie. 2000. "Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?" University of Chicago Law Review 67 (fall): 1461–87.
Vertinsky, Liza. 1999. A Law and Economics Approach to Criminal Gangs. Aldershot, England; Brookfield, Vt.: Ashgate.
Enhanced Penalties for Gang-Related Activities Some states now allow courts, including juvenile courts, to enhance the sentences of individuals convicted of gang-related activities. In Illinois, if a juvenile age 15 or older commits an offense in furtherance of criminal activities by an organized gang, then a juvenile court is required to enter an order to try the juvenile as an adult under the criminal laws of the state. 705 Ill. Comp. Stat. § 405/5-805 (1999). An organized gang under the statute is defined as "an association of 5 or more persons, with an established hierarchy, that encourages members of the association to perpetrate crimes or provides support to members of the association who do commit crimes."
Municipalities have enacted a variety of measures designed to curb gang violence. Some ordinances contain provisions similar to state statutes. For example, the city of Albuquerque, New Mexico, enacted an anti-gang recruitment ordinance to protect its citizens from the fear, intimidation, and physical harm caused by the criminal activities of gangs. The ordinance provides a laundry list of offenses that are considered gang crimes and prohibits individuals from recruiting members to join criminal street gangs.
One of the most common forms of municipal ordinances aimed at reducing gang activities appears in the form of anti-loitering laws. The use of these laws to reduce unwanted elements within a city has a long history. Many cities have enacted such laws to allow police to arrest vagrants and others deemed to be menaces to society. Several cities adapted these laws to apply specifically to gang members. However, some courts have determined that these laws are unconstitutional either on their face or as applied to particular defendants.
Local governmental entities have also enacted public Nuisance laws designed to allow local law enforcement to enjoin criminal activities. Like the anti-loitering ordinances, these laws have come under attack on a variety of constitutional grounds.
Constitutionality of Anti-Gang Laws
Laws aimed specifically at prosecuting members of gangs have come under attack due to a variety of constitutional theories. Anti-loitering laws have been challenged on several grounds, including First Amendment prohibitions against vagueness and overbreadth, Fourth Amendment proscriptions of unreasonable searches and seizures, and constitutional provisions that prevent the government from punishing individuals merely because of their status.
Vagueness has been the primary reason why the Supreme Court has determined that anti-loitering statutes have been unconstitutional. In Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971), the Court determined that an ordinance prohibiting people from assembling on a sidewalk in such a way that it would be annoying to passersby was unconstitutionally vague because its application was based on sole discretion of police officers to determine what was "annoying." One year later, in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), the Court held that an ordinance which encouraged Arbitrary and erratic arrests was also unconstitutionally vague. Likewise, in Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983), the Court held that a California statute that allowed police to arrest individuals who could not show credible and reliable identification and account for their presence at a particular location was unconstitutional due to vagueness.
The Chicago City Council in 1992 enacted the Gang Congregation Ordinance that prohibited loitering among criminal street gang members at any public place. The ordinance allowed police officers to order any group of individuals who were congregated "with no apparent purpose" to disperse if the officer believed one of the group was a street gang member. In three years, Chicago police issued more than 89,000 dispersal orders and made more than 42,000 arrests under the ordinance.
In City of Chicago v. Morales, the Supreme Court, per Justice John Paul Stevens, determined that the ordinance was unconstitutional due to vagueness for two primary reasons. First, according to the Court, the ordinance failed to provide fair notice of prohibited conduct. Noted the Court," It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an 'apparent purpose'" under the ordinance. Accordingly, citizens, even those who appeared in public with a gang member, were not provided fair notice of the type of conduct proscribed under the ordinance. Second, the ordinance failed to provide minimum guidelines for enforcement. The determination of whether individuals were standing around with no apparent purpose was based on the discretion of the officer.
After the 1992 gang ordinance was declared unconstitutional the city of Chicago enacted a second Gang Congregation Ordinance in 2000. The second ordinance authorizes police to command gang members to disperse when they are congregated on streets for the purpose of establishing control over certain areas of the city.
Other efforts to curb gang violence have been ruled constitutional. In People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), the city of San Jose successfully requested an Injunction against local gangs based on violations of state public nuisance laws. The gang members brought suit, challenging that both the statute and the injunction violated the First Amendment. The California Supreme Court determined that neither the injunction nor the statute violated the gang members' associational rights and that the gang members' conduct qualified as a public nuisance under the statute. Several cities in California have sought and received temporary and permanent injunctions against local gangs preventing the gang members from congregating in public places.
Bureau of Justice Assistance. 1997. Urban Street Gang Enforcement. Washington D.C.: The Bureau of Justice Assistance.
Huff, C. Ronald, ed. 1996. Gangs in America. Thousand Oaks, Calif.: Sage Publications.
Strosnider, Kim. 2002. "Anti-Gang Ordinances After City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law." American Criminal Law Review 101.